Quashing of proceedings

Petitioner/accused assailed notice issued by Trial Court, whereby petitioner/accused was summoned to face trial in private complaint filed by respondent/complainant

Validity

In order to constitute offence, complainant was to disclose existence of both basic ingredients namely unlawful act "actus rea" and criminal intent "mens rea" on the part of petitioner/accused

Before issuing process, the Court was under obligation to satisfy itself for the purpose of ascertaining truth or falsehood of respondent/complaint as to the existence or non-existence of sufficient grounds to issue process against petitioner/accused

Main object of dealing with examination of complaint under S.200, Cr.P.C was to protect public from false, frivolous and vexatious complaints filed against them

Trial Court could not proceed to issue process against accused until and unless, it was satisfied that prima facie case had been made out against those who were accused of alleged criminal offence

Respondent/ complainant filed complaint as counterblast, who himself was guilty of offence for which a separate criminal case had already been registered against him and after remaining unsuccessful at all forums to achieve his nefarious designs, he filed private complaint against petitioner/accused who was pressing hard since long on the basis of criminality of respondent/complainant

High Court set aside orders passed by Trial Court as well as Lower Appellate Court as the same were in sheer violation of law

Petition was allowed, in circumstances.

Allegation that complainant got the FIR against the accused/applicant with sole aim to deprive the applicant from inheritance and that the accused/applicant was colouring the civil dispute into criminal solely to pressurize the applicant and illegal investigation was carried out against the applicant, which required quashing of the same

Validity

Remedy provided under S.561-A, Cr.P.C., could not be construed as an alternate remedy or substitute for an express remedy provided under Ss. 249-A or 265-K, Cr.P.C., as the case maybe

Therefore, the ordinary remedy provided under the law could not be bypassed or circumvented

Section 249-A,Cr.P.C.,provided the powers of the Magistrate to acquit an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, it is considered that the charge was groundless or that there was no probability of the accused being convicted of any offence

Likewise, S.265-K, Cr.P.C., also vested in the Court (Sessions Court or High Court) the powers to acquit the accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, itis considered that there is no probability of the accused being convicted of any offence

However, according to the judicial consensus and unanimity matured on the characteristics of inherent jurisdiction of the High Court under S.561-A, Cr.P.C., it is well-established that the inherent jurisdiction so conferred is curative in nature

In fact, the expression "abuse of process" used under S.561-A, Cr.P.C., connotes an unwarranted or irrational use of legal proceedings or process which also includes the presence of ulterior motives for activating the process for unjustified arrest or groundless criminal prosecution

Essential purposefulness of this doctrine is to foster and safeguard the judicial system, ensuring that it is not misused or blemished

This terminology can be comprehended as an acuity that if a Court has jurisdiction to hear a case, it may terminate the prosecution if an abuse of process is floating on the surface on record, with logical reason and probability of exasperation, persecution and unfairness to the opposite side

Applicant had already availed his remedy under the prescriptions of S.249-A,Cr.P.C., before the Judicial Magistrate and that too had already been dismissed, which fact was also admitted by the counsel for the applicant during the course of arguments, thus, the Criminal Miscellaneous Application was dismissed, in circumstances.

Judicial Magistrate took cognizance of the report under S. 173, Cr.P.C submitted by the police, and the applicant, who was let-off during investigation, was joined and non-bailable warrants were ordered to be issued

Validity

Admittedly, the applicant was nominated in the FIR with specific role of causing injuries to the deceased

Besides, the offence with which the applicant had been charged was exclusively triable by the Court of Session and carried capital punishment, therefore, the Judicial Magistrate after taking cognizance had submitted the case papers to the Court of Sessions as required by S.190(1), Cr.P.C which was the ultimate Court of trial, where it had been instituted

However, after assigning number to it, the case had been assigned to Additional Sessions Judge (Trial Court)

Trial Court had also taken cognizance of the offence

Since the impugned order had been acted upon and had attained finality, hence it was not in existence or in the field

Application was not maintainable and had become infructuous

Conse-quently, the application was dismissed

After taking cognizance by the Trial Court, alternate remedy was made available for the applicant which could be availed if so advised.

Restriction on hunting, killing or capturing animals in wildlife reserve, acts restricted in a National Park, restriction on killing or capturing of protected or game animals, controlled hunting areas, unlawful possession of animals

Quashing of proceedings

Inherent power of High Court

Scope

Petitioner found a snow leopard cub in an injured and unconscious condition, he provided proper medication and after saving its life, handed over the cub to Conservator Wildlife

Later District Forest Officer Parks and Wildlife issued summon to the petitioner directing the petitioner to appear before him and explain as to why the expenditures involved in soft release of the snow leopard cub should not be charged on the petitioner

Validity

In the matter in hand, after perusal of proceedings taken by the respondents and allegations narrated in the contents of impugned summon issued by the Forest Magistrate against the petitioner, it transpired that the respondents through the instant proceedings intended to recover the expenditures involved in the release of snow leopard cub

Perusal of the Gilgit Baltistan Wildlife Protection Act, 1975, showed that no such provision was available

Furthermore, it was admitted fact of affairs available on record that the petitioner/accused rescued a snow leopard cub, found in injured and unconscious condition, and after proper treatment and recovery the same was handed over to the respondents

Video clip shown in Court and statement of the petitioner recorded by the respondents transpired that the Conservator Wildlife had taken the custody of the cub which was now in custody of the department

Thus, the allegations regarding commission of offences under S.8, 10, 22, 24 & 29 Gilgit Baltistan Wildlife Protection Act, 1975, against the accused/petitioner were not made out

Record of the case suggested that the petitioner should be given a letter of appreciation for his efforts made for saving a precious wildlife but instead, the respondents had initiated criminal proceedings against him which was not justified

Object of S.561-A,Cr.P.C., whereby inherent power was conferred upon the High Court was to do real and substantial justice and to prevent the abuse of the process of Court

Thus, it was to be first determined whether the facts alleged in the complaint disclosed commission of any criminal offenceon the part of applicant/accused or whether the criminal proceedings had been initiated with malafide intentions or to coerce the applicant

Proceedings against the petitioner/accused as contained in the complaint even if believed, no case was made out and continuation of the proceedings amounted to sheer abuse of process of Court which amounted to abuse of process of law

Petition was allowed by quashing all the impugned proceedings.

Station House Officer concerned caught the petitioners/convicts red handed on the spot while making construction on State land and submitted a complaint before the Executive Magistrate

After summary proceedings, the Executive Magistrate convicted the petitioners and sentenced them to 20 days for violation of order

Petitioners challenged the said order before the Revisional Court, which reduced the sentence from 20 days to three days and dismissed the revision petition

Validity

In the instant petition the petitioners had not annexed the record of proceedings before the Trial Court as well as proceedings of trial before the Court of Session Judge just to conceal the facts

After perusal of record the Court found no illegality or infirmity in the procedure adopted by the Executive Magistrate, or in the judgment/order passed by the Sessions Judge

Although under S.561-A, Cr.P.C, the High Court may make such orders as may be necessary to give effect to "any order under the Code of Criminal Procedure or, to prevent abuse of the process of any Court or otherwise to secure the ends of justice but subject to certain exceptions i.e. when prima facie no case is made out, or when there is want of jurisdiction or when there is sheer abuse of process of law

In the instant case the petitioners failed to show any one of the said exceptions

Thus, there was no force in the instant petition and the same was dismissed.

Said provisions of law merely preserve it's inherent jurisdiction to enable it to make such orders as might be necessary to give effect to an order under the Criminal Procedure Code, 1898 or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice

Said section could not be used to stifle prosecution

High Court should invoke S. 561-A, Cr.P.C., for quashing the proceedings pending before the Trial Court in exceptional circumstances.

Petitioner disagreed with that findings and contended that it had no legal value because the entire proceedings were conducted in contravention of S.9 of the Anti-Rape (Investigation and Trial) Act, 2021

Through present petition, petitioner sought quashing of the said proceedings and a direction to re-investigate the case in accordance with law

Held, that Anti-Rape (Investigation and Trial) Act, 2021, ensured various fundamental rights guaranteed by the Constitution and to discharge obligations under International law to address the issue of sexual violence and brought offenders to justice

To that end, the Act provided for efficient procedures, speedy trials, evidence and matters connected therewith or incidental thereto

Said Act aimed to effectively deal with rape and sexual abuse crimes mentioned in its Schedules committed against women and children

Section 9 of the Act is mandatory, which conferred special jurisdiction on Special Sexual Offences Investigation Units (SSOIUs) in respect of Scheduled Offences

For that purpose, it mandated the Federal Government to establish SSIOUs for the Capital Territory and the Provincial Governments in every district

During the hearing of this case, it was mentioned that the Punjab Government had not established SSIUOs in several districts even two years after the enactment of the Act

High Court gave directions to constitute the requisite SSOIUs immediately and to arrange necessary training for the Police Officers assigned to them as required by law

District Police Officer concerned had submitted a report that SSOIUs(Special Sexual Offences Investigation Units) and Gender Crime Cells comprising female SIs/ASIs, who received training regarding sexual offences and gender crimes had been established in the District under the supervision of the Sub-Divisional Police Officer

S.P. Investigation was the overall in-charge of the Wing

Present case was being investigated by an SSOIU(Special Sexual Offences Investigation Units)

District Police Officer concerned had categorically stated that the investigation of this case was compliant with S.9 of the Act

Petition was disposed of in view of the report of District Police Officer concerned.

Said provisions of law merely preserve its inherent jurisdiction to enable it to make such orders as might be necessary to give effect to an order under the Criminal Procedure Code, 1898 or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice

Said section could not be used to stifle prosecution

High Court should invoke S. 561-A, Cr.P.C., for quashing the proceedings pending before the Trial Court in exceptional circumstances.

Petitioners were aggrieved of initiation of inquiry by Federal Investigating Agency and imposing restrictions on their properties and bank accounts

Validity

There was no Suspicious Transaction Report (STR) against petitioners nor Federal Investigating Agency had any report in its possession to reasonably believe that property was involved in Money-Laundering

Investigating officer did not seek permission of Trial Court to attach Bank accounts nor had sent any notice to petitioners

Seizure of property was not made in accordance with the law rather the same was in contravention of the provision of law

Seizure of Bank accounts of the petitioners was nothing but a nullity in the eye of law

High Court set aside seizure letter issued by Federal Investigating Agency as the same suffered from perversity and clear transgression of authority and was nullity in the eye of law

Constitutional petition was allowed, in circumstances.

Petitioners were aggrieved of initiation of inquiry by Federal Investigating Agency and imposing restrictions on their properties and bank accounts

Validity

There was no Suspicious Transaction Report (STR) against petitioners nor Federal Investigating Agency had any report in its possession to reasonably believe that property was involved in Money-Laundering

Investigating officer did not seek permission of Trial Court to attach Bank accounts nor had sent any notice to petitioners

Seizure of property was not made in accordance with the law rather the same was in contravention of the provision of law

Seizure of Bank accounts of the petitioners was nothing but a nullity in the eye of law

High Court set aside seizure letter issued by Federal Investigating Agency as the same suffered from perversity and clear transgression of authority and was nullity in the eye of law

Constitutional petition was allowed, in circumstances.

When a criminal matter is pending before a Trial Court and interim challan has been submitted, under normal course application under S. 265-K, Cr.P.C is to be filed before concerned Court in case the accused is of the opinion that charge is either groundless or there is no probability of conviction

In exceptional circumstances if facts of a case so warrant a person/accused can approach High Court for quashing of FIR, if the action is patently illegal, without jurisdiction

In such circumstances sending a person to go through full process of trial and then get himself acquitted would be a miscarriage of justice with that person

High Court should exercise its powers under S.561A, Cr.P.C., in such circumstances.

Federal Investigating Agency initiated investigations against petitioners for committing criminal breach of trust, cheating, forgery and misconduct

Contention of petitioners was that under S.51 of Sales Tax Act, 1990 and under S.227 of Income Tax Ordinance, 2001, suit or criminal prosecution against them was barred unless a prior approval was granted in that respect by Federal Board of Revenue

Validity

Province under the petitioners related to only official acts, orders or anything done in good faith by the officials performing duty under those laws, rules, instructions or directions made or issued thereunder

Petitioners were not charged for committing contravention much the same embraced by those laws, etc. that needed an approval in advance from the Board for an action against them under some other laws

Petitioners were alleged to have fake companies and directed tax return refunds to such companies' bogus accounts and accounts of non-existent persons with a predetermined mind and Bank officials colluding with them in the spree

Whole episode was full of mens rea and was an outcome of proclivity to commit actus reus with plan base in approach and consequences

Such acts and ensuing effects were nowhere defined or covered or comprehended by Sales Tax Act, 1990 and Income Tax Ordinance, 2001, therefore not protected under aforesaid provisions nor could such construction even otherwise be construed running under other laws

High Court declined to interfere in criminal proceedings pending against petitioners

Constitutional petition was dismissed, in circumstances.

Accused sought quashing of proceedings initiated on a complaint filed by State of Bank of Pakistan (SBP) under subsections (1) and (1-A) of S. 83 of Banking Companies Ordinance, 1962

Accused person's involvement in alleged misreporting could only be determined after the evidence was led at trial

Prima facie it appeared from a tentative assessment of the record that the company was short on its liquidity requirement

Company had made several promises and representations to the SBP for raising its liquidity

Accused was the financial head at that time and had confirmed that a subordinated loan had been received

Loan was also reflected in the company's financial statement

Such had turned out to be wrong

Accused did have a case to answer and the charge was not groundless nor was it certain that a conviction could not take place

Whether there was mens rea or not could only be determined after analyzing the available evidence

When the Single Judge of High Court after holding a hearing had already ordered that a triable case was made out and that a charge should be framed, it was not open to the Bench as a Single Judge to sit over the order of the predecessor Single Judge

Division Bench observed that it did not have jurisdiction to adjudicate a plea for quashing the proceedings

Application was dismissed, in circumstances.

Where a court has ordered that a charge should be framed then it is not open to the successor Judge to sit over the order of his predecessor and quash the proceedings.

Petitioners were Stock Exchange Brokers and were alleged to have caused loss to State exchequer by selling shares in question at very low price

Petitioners sought quashing of proceedings before National Accountability Bureau (NAB) on the plea that it was a regulated activity and forum to inquire into such matters was Securities and Exchange Commission of Pakistan

Validity

Dispute between parties was one pertaining to rate that shares in question were sold by petitioners

Suit was already pending in High Court for determination of amount at which the shares were to be sold

Liability of petitioners, if any towards shareholders was disputed between the parties

Many factors and market conditions existed that were to be taken into account before liability of petitioners could be affixed

Such was an ongoing process and was to reach finality when pending suit for determination of liability was decided

Securities and Exchange Commission of Pakistan was best placed to determine in the first instance, whether an offence or fraud had taken place

Securities and Exchange Commission of Pakistan was granted substantial powers under S. 27 of Securities and Exchange Commission of Pakistan Act, 1997, to investigate whether any regulated person was engaged in committing fraud, misfeasance or other misconduct in carrying out a regulated activity, which was the complaint against petitioners

Securities and Exchange Commission of Pakistan for the purpose of investigation could seek assistance of any other investigating agency or bureau under S. 29(4) of Securities and Exchange Commission of Pakistan Act, 1997

Securities and Exchange Commission of Pakistan had extensive powers to investigate the matter and if needed could file a reference with NAB

As no reference was made by Securities and Exchange Commission of Pakistan, proceedings against petitioners were void ab initio and were quashed

Petition was allowed, in circumstances.

Petitioners were facing trial who sought quashing of proceedings against them at the stage when cross examination on investigating officer as last prosecution witness was under process

Plea raised by petitioners was that penalty in the matter had already been imposed against proceedings initiated under show cause notice therefore, trial was a double jeopardy

Validity

Case of prosecution was almost over and at such stage expressing opinion into merits of the case especially based on evidence that too under discretionary Constitutional jurisdiction was not only to prejudice case of parties but was likely to deprive both of them an appellate forum which otherwise in the wake of final decision by Trial Court was available to aggrieved party

Petitioners were not the only accused in reference but were arraigned therein along with other accused persons

Nature of allegations and overlapping role of each accused in causing effect leading to alleged loss to national exchequer was such that separating attribution to one accused from the other was not possible without undermining the whole prosecution case

Such approach would amount to resolving controversy in piecemeal which had never been the scheme of law

Commission of any offence by petitioners could only be settled after deep and at minuscule level examination of evidence

Such exercise was not permissible under Constitutional jurisdiction and was tantamount to stretching things beyond prescribed limits

Penalty imposed under show cause notice was not outcome of any proceedings held in trial and in respect of same offence by competent Court of law to attract principle of double jeopardy enshrined under Art. 13 of the Constitution and S. 403, Cr.P.C.

Proceedings in terms of show cause notice were not equal to the ones held in trial which were basically meant to find out guilt or otherwise of an accused in alleged offence on the basis of evidence

Show cause notice followed quite distinct procedure than the one held in regular trial where mandatorily evidence of parties was to be recorded and appreciated, whereas in the former no such exercise was restored to

Constitutional petition was dismissed, in circumstances.

Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 2(pa), 27 & 41-B [as inserted by Securities and Exchange Commission of Pakistan (Amendment) Act (XXXVI of 2016)]

Constitution of Pakistan, Art. 199

Constitutional petition

Quashing of proceedings

Regulated activity

Liability, determination of

Pendency of civil suit

Petitioners were Stock Exchange Brokers and were alleged to have caused loss to State exchequer by selling shares in question at very low price

Petitioners sought quashing of proceedings before National Accountability Bureau (NAB) on the plea that it was a regulated activity and forum to inquire into such matters was Securities and Exchange Commission of Pakistan

Validity

Dispute between parties was one pertaining to rate that shares in question were sold by petitioners

Suit was already pending in High Court for determination of amount at which the shares were to be sold

Liability of petitioners, if any towards shareholders was disputed between the parties

Many factors and market conditions existed that were to be taken into account before liability of petitioners could be affixed

Such was an ongoing process and was to reach finality when pending suit for determination of liability was decided

Securities and Exchange Commission of Pakistan was best placed to determine in the first instance, whether an offence or fraud had taken place

Securities and Exchange Commission of Pakistan was granted substantial powers under S. 27 of Securities and Exchange Commission of Pakistan Act, 1997, to investigate whether any regulated person was engaged in committing fraud, misfeasance or other misconduct in carrying out a regulated activity, which was the complaint against petitioners

Securities and Exchange Commission of Pakistan for the purpose of investigation could seek assistance of any other investigating agency or bureau under S. 29(4) of Securities and Exchange Commission of Pakistan Act, 1997

Securities and Exchange Commission of Pakistan had extensive powers to investigate the matter and if needed could file a reference with NAB

As no reference was made by Securities and Exchange Commission of Pakistan, proceedings against petitioners were void ab initio and were quashed

Petition was allowed, in circumstances.

Allegation against petitioner was that he was member of Investment committee and on its recommendations investment made by the Corporation resulted into loss

Validity

Such was not one committee merely, which decided to go for restructuring but a whole lot of them plus Board of Directors chose to do so after weighing several options offered by FDIBL for settlement and consulting the matter with legal experts

When everyone concerned was on the Board and behind such decision question whether each one of them was acting with mens rea in order to cause loss to national exchequer and gain to himself was not likely to be answered in affirmative

Any incorrect decision wreaking havoc to the Corporation did not mean that it was the result of some action or omission constituting an offence

Even if it was so, each one participating in the process acted with ill intent and was criminally liable for it unless some relevant evidence to that end with specific role of the one shown concerned had been found

Petitioner was just a part of a decision for recovery of lost investment, which had gone wrong and had caused alleged loss to the Corporation

In the capacity of one of the Members of Board of Directors and Investment Committee could not be held criminally liable for, it, in absence of any evidence pointing out to his actus reus combined with mens rea to make personal gain and to cause such a loss

Charge containing such allegations against petitioner was groundless and there was no likelihood or probability of conviction of petitioner on the basis of material available with prosecution

High Court quashed proceedings against petitioner

Constitutional petition was allowed accordingly.

When challan/report under S. 173 Cr.P.C. is submitted in Trial Court, then petitioner has alternate remedy to file petition under S. 265-K, Cr.P.C. for his acquittal.

Investigation should not be hampered in exercise of writ jurisdiction unless it is proved that the investigation lacks legal efficacy or lawful authority.

Exercise of powers under S. 561-A, Cr.P.C. amounts to depriving the prosecution an opportunity to prove guilt of the accused

Section 561-A, Cr.P.C. cannot ordinarily be used

Power conferred under S. 561-A, Cr.P.C. is neither alternative nor additional.

Petitioners had challenged their convictions and sentences awarded by Special Magistrate whereby they were sentenced for simple imprisonment for three months and 100,000/ fine under Ss. 6 & 9 of Khyber Pakhtunkhwa Food Stuffs Control Act, 1958

Letter dated 27th March 2020 issued by the Section Officer (security-II) of Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department with the Subject, Shopkeepers purportedly involved in hoarding of essential items with name address of the shopkeeper/store owner

Neither the petitioners were named in the list nor any separate application/complaint was made against them

Petitions were produced before Special Magistrate, but when the petitioners were not named in the report/letter issued by the government and when no evidence was available on record against them then how they were entangled was a question mark on the part of authorities

Prosecution could not explain the same candidly conceded that the petitioners were not named in the report, however, added that during the course of investigation/inquiry their names were surfaced

Although, prosecution agitated the issue of involvement of petitioners in the commission of offence yet the analysis of record showed that nothing was brought on record to connect the petitioners with the commission of offence

Petitions were allowed by quashing the impugned orders along with the proceedings against the petitioners, in circumstances.

Petitioners were aggrieved of initiation of inquiry proceedings by FIA on the directions issued by Federal Tax Ombudsman

Validity

Once matter was sub-judice before competent Court of jurisdiction, no other Court or authority, including FIA or for that purpose Tax Ombudsman, could initiate any duplicate proceedings in respect of the same subject matter, as it amounted to showing disrespect to the Court proceedings at one hand and tentamount to double jeopardy and multiplicity of proceedings on the other hand

For the purposes of implementing tax law, including Income Tax Ordinance, 2001, Sales Tax Act, 1990 and Customs Act, 1969, complete mechanism and hierarchy was provided for the purposes of assessment and adjudication of tax liability through quasi-judicial proceedings

Forums of appeals had been provided by the Legislature for the purposes of deciding all factual and legal controversies relating to tax laws, rules and regulations, SROs etc

In addition to appellate forums, reference jurisdiction was also available before respective High Courts and even leave to appeal could be filed before Supreme Court for final adjudication of proceedings under tax laws

Matters pertaining to Customs Act, 1969, and quasi-judicial orders passed by Tax Authorities, which were subject to scrutiny by another High Court could not be taken cognizance by FIA authorities under inquiry initiated on the directions issued by Federal Tax Ombudsman in suo motu exercise of jurisdiction

Inquiry initiated by FIA on the directions issued by Federal Tax Ombudsman in suo motu jurisdiction was in violation of Ss.9 and 10 of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000

High Court quashed inquiry proceedings initiated by FIA as the same were illegal and without jurisdiction

Constitutional petition was allowed, in circumstances.

Petitioners were Stock Exchange Brokers and were alleged to have caused loss to State exchequer by selling shares in question at very low price

Petitioners sought quashing of proceedings before National Accountability Bureau (NAB) on the plea that it was a regulated activity and forum to inquire into such matters was Securities and Exchange Commission of Pakistan

Validity

Dispute between parties was one pertaining to rate that shares in question were sold by petitioners

Suit was already pending in High Court for determination of amount at which the shares were to be sold

Liability of petitioners, if any towards shareholders was disputed between the parties

Many factors and market conditions existed that were to be taken into account before liability of petitioners could be affixed

Such was an ongoing process and was to reach finality when pending suit for determination of liability was decided

Securities and Exchange Commission of Pakistan was best placed to determine in the first instance, whether an offence or fraud had taken place

Securities and Exchange Commission of Pakistan was granted substantial powers under S. 27 of Securities and Exchange Commission of Pakistan Act, 1997, to investigate whether any regulated person was engaged in committing fraud, misfeasance or other misconduct in carrying out a regulated activity, which was the complaint against petitioners

Securities and Exchange Commission of Pakistan for the purpose of investigation could seek assistance of any other investigating agency or bureau under S. 29(4) of Securities and Exchange Commission of Pakistan Act, 1997

Securities and Exchange Commission of Pakistan had extensive powers to investigate the matter and if needed could file a reference with NAB

As no reference was made by Securities and Exchange Commission of Pakistan, proceedings against petitioners were void ab initio and were quashed

Petition was allowed, in circumstances.

Petitioner was university employee who assailed news item published in press regarding his involvement in embezzlement of university funds

Validity

After publishing newspaper clipping no notice either from government or from Anti-Corruption Establishment was issued nor any F.I.R. was registered against petitioner

No illegal or coercive action was taken against petitioner who had no answer with him

Mere apprehension of causing arrest or any harassment on the basis of newspaper clipping could not be considered to be ground for maintaining constitutional petition for quashing of proceedings

Allegations fell within the ambit of disputed questions of facts and to prove such questions of fact it was necessary to record evidence and examination of record of university

Question of fact which required recording of evidence and examination of record, could not be gone into by High Court in exercise of Constitutional jurisdiction

Inquiry committee was constituted by competent authority to probe the allegations levelled against petitioner

High Court declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

Held, though High Court had inherent discretionary power under S. 561-A, Cr.P.C. but at the same time had no powers to step into jurisdiction of Trial Court and indulge in fact finding activities, which was exclusive domain of Trial Court

Inherent powers under S. 561-A, Cr.P.C., could not be used as a device to short cut proceedings before Trial Court, as jurisdiction under S. 561-A, Cr.P.C. was exercised only in such cases where there were no disputed facts and there was glaring illegality of action against a person and which did not require any elaboration and detailed inquiry

Inherent power of High Court under S. 561-A, Cr.P.C. could be invoked in exceptional cases to prevent abuse of process of law and Court

Alternate remedy under S. 249-A, Cr.P.C. was available to petitioner before Trial Court, who had ample power to acquit accused on the basis of report of investigating officer filed under S. 173, Cr.P.C.

Constitutional petition was dismissed in circumstances.

Petitioners were ex-officials of National Accountability Bureau (NAB) who were accused of misusing their authority to extend benefit to an accused in a reference prepared by them

Trial Court declined to extend benefit of amended law to accused persons and their application for acquittal was dismissed

Validity

Matter of inquiry was concluded expeditiously which was within the mandate of National Accountability Bureau, which envisaged expeditious conclusion of inquiry as well as investigation

Amendment was made in National Accountability Ordinance by virtue of which an explanation was added to S. 9(a)(vi) of National Accountability Ordinance, 1999

Amendment Ordinance lapsed but its effect and consequence of lapse were not considered by Trial Court

Charges against petitioners were silent vis-a-vis S. 36 of National Accountability Ordinance, 1999

High Court set aside order in question and remanded the matter to Trial Court for decision afresh on application of acquittal filed by petitioners

Constitutional petition was allowed accordingly.

Powers under S. 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any court or to secure the ends of justice

Such powers cannot be exercised mechanically or in every case where there is an allegation of false implication or of the evidence being false

Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence, likely to come on record, is true or false.

Quashing of proceedings at an early stage gives an impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law.

Petitioners assailed order of Trial Court whereby while acquitting the accused persons, directed the Magistrate under S. 195, Cr.P.C. to initiate proceedings against the prosecution witnesses for giving false evidence and commission of offence under Ss. 193, 194 & 195, P.P.C.

Principle falsus in uno, falsus in omnibus had gradually encouraged and emboldened witnesses appearing in trials of criminal cases to indulge in falsehood and lies and making it more and more difficult for the courts to discover truth and dispense justice

Said principle was not to be applied to criminal cases in Pakistan as it was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view was not in accord with the Islamic provisions on the subject besides militating against the criminal law, according to which deposing falsely in a court and commission of perjury entailed serious penal consequences

Trial Court had rightly directed for initiating proceedings under S. 195, Cr.P.C.

Petition for quashing the proceedings before Magistrate was dismissed.

Drug Inspector took samples of syrup manufactured by petitioners, chemical analysis of which revealed that it was not substandard

Provincial Quality Control Board granted sanction to the Drug Inspector to file a complaint before the Drug Court for contravention of Ss.23(1)(a)(vii), 27(1)(a) & 34 of Drugs Act, 1976

Petitioners sought their acquittal on the ground that the sample syrup was a non-drug and was a food supplement

Central Licensing and Drugs Regulation Board had exempted food supplements from S. 7 of the Drugs Act, 1976 for the purpose of registration

Matter pertaining to enlistment of the food supplements, dietary supplements, health supplements and nutraceuticals which fell within the jurisdiction of Drug Regulatory Authority of Pakistan and the same could not be dealt with under the provisions of the Drugs Act, 1976

Provincial Quality Control Board had no jurisdiction to sanction prosecution to the Drug Inspector against the petitioners for non-registration of the sample syrup

Proceedings pending before the Drug Court were quashed and the petitioners were acquitted of the charge.

Nothing was available on record which indicated that FIA officers who conducted raid at the airport and recovered alleged contraband articles were actually authorized for such function by Federal Government through special notification

FIA accepted that there was no such notification of authorization issued in their favour or any other prosecution witness to act as 'Customs Officer'

Without issuing a notification in 'Official Gazette', none of the raiding party was authorized to take action in respect of any offence punishable under Customs Act, 1969

Weapons/parts in question were not produced during examination of important prosecution witnesses before whom arrest and recovery took place

Items in question were required to be produced before Trial Court at the time of examination of said important prosecution witnesses as 'real evidence' to be identified as same items which were recovered from accused

No probability of conviction existed against accused persons

High Court acquitted accused and absconding co-accused persons of the charge as proceeding further would be a futile exercise

Application was allowed in circumstances.

Nothing was available on record which indicated that FIA officers who conducted raid at the airport and recovered alleged contraband articles were actually authorized for such function by Federal Government through special notification

FIA accepted that there was no such notification of authorization issued in their favour or any other prosecution witness to act as 'Customs Officer'

Without issuing a notification in 'Official Gazette', none of the raiding party was authorized to take action in respect of any offence punishable under Customs Act, 1969

Weapons/parts in question were not produced during examination of important prosecution witnesses before whom arrest and recovery took place

Items in question were required to be produced before Trial Court at the time of examination of said important prosecution witnesses as 'real evidence' to be identified as same items which were recovered from accused

No probability of conviction existed against accused persons

High Court acquitted accused and absconding co-accused persons of the charge as proceeding further would be a futile exercise

Application was allowed in circumstances.

Exercise of jurisdiction under S. 561-A, Cr.P.C. to quash proceedings is not completely prohibited and it has been left open to exercise such jurisdiction in appropriate cases and sparingly.

Petitioner submitted application regarding her forcible dispossession by respondents from the house to the District Police Officer, who after inquiry submitted complaint under S.145, Cr.P.C. to the Magistrate

Respondents asserted that complaint was not maintainable while the Magistrate held that the complaint was maintainable as there was apprehension of breach of peace

Revisional court vide impugned order held that the complaint under S.145, Cr.P.C. was not maintainable

Validity

Proceedings under S.145, Cr.P.C. were meant to avoid breach of peace and in no way were meant to decide a title dispute or to restore possession

Section 145, Cr.P.C. laid down that complaint was to be presented with proof of dispossession within two months of its filing, but said application submitted to District Police Officer did not reveal any specific date or period of dispossession

Petitioner and respondents were siblings and no doubt the former might have claimed share in disputed property, but the same could not be adjudicated upon under S. 145, Cr.P.C. that had got a very limited scope and infringement of private right or dispossession of any of the parties was per se not enough to attract S.145, Cr.P.C.

Section 145, Cr.P.C. was meant to meet an emergent situation posing a threat to peace and could not be used for settling rights of the parties or their claim to title

Import of subsection (5) of S.145, Cr.P.C. was that where there was no breach of peace then the Magistrate had no jurisdiction to make order regarding subject of dispute

Revisional court had rightly appreciated the facts and circumstances of the case and arrived at right conclusion, which order was not open to interference under S. 561-A, Cr.P.C.

Petition, being devoid of merits, was dismissed.

When cognizance was taken by Trial Court proper course for accused persons was to have their early acquittal by resorting to provision of S. 265-K, Cr.P.C. and deviation thereto in name of quashment was legally not permissible

Accused persons were to first approach Trial Court for their early acquittal

Application was dismissed in circumstances.

Petitioners were aggrieved of filing of references by National Accountability Bureau against them for committing offence of wilful default

Petitioners contended that promulgation of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, barred jurisdiction of National Accountability Bureau in cases of wilful default, as provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 had retrospective effect

Validity

Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act 2016] applied to and prevailed over all cases of wilful default under National Accountability Ordinance, 1999 as per definition provided in S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001 from 13-8-2016 when Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, took effect

Other matters relating to wilful default, inquires, investigations and other proceedings of wilful default not covered by S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001, [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] but covered by S. 5(r) of National Accountability Ordinance, 1999 were continued to be governed by National Accountability Ordinance, 1999

Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] did not have retrospective effect

All complaint verifications, cases pending before Governor State Bank of Pakistan in connection with National Accountability Ordinance, 1999, National Accountability Bureau inquiries, investigations and references in respect of offence of wilful default under National Accountability Ordinance, 1999 in existence prior to 13-8-2016 were continued to be governed by National Accountability Ordinance, 1999

Any convictions under National Accountability Ordinance, 1999 were subjected to same sentences, disqualifications etc., as provided in Financial Institutions (Recovery of Finances) Ordinance, 2001 and not under National Accountability Ordinance, 1999

All persons already convicted of offence of wilful default under National Accountability Ordinance, 1999 were to remain convicted and their appeals were to proceed with under mechanism provided in National Accountability Ordinance, 1999

Constitutional petition was dismissed accordingly.

If the court came to a conclusion that accused was innocent and his/her conviction was not possible, the court was duty bound to quash the criminal proceedings.

Petitioners were facing criminal charges who sought quashing of proceedings on the ground that proceedings before Intellectual Property Tribunal were pending between the parties

Validity

Civil litigation was in progress before Intellectual Property Tribunal

Criminal proceedings were not barred in presence of civil proceedings and both civil and criminal proceedings could proceed simultaneously

Factual controversy was involved in civil litigation

Question of fact could not be resolved under constitutional jurisdiction

Extract in FIR required recording of facts before Trial Court, where it was open that before framing of charge petitioners could file application for their discharge or otherwise under S. 249-A or 265-K, Cr.P.C., for ultimate acquittal

Constitutional petition was dismissed in circumstances.

Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace in exercise of powers under S. 22-A, Cr.P.C. whereby he issued direction to Station House Officer concerned for registration of FIR against petitioner as cognizable offence was committed

Validity

Ex-Officio Justice of Peace passed order in question in accordance with law keeping in view allegations levelled against petitioner which were guiding towards a cognizable offence

Question of applicability of S. 489-F, P.P.C. was controversial, requiring recording of evidence and High Court declined to exercise Constitutional jurisdiction

Police had a statutory duty under S. 154, Cr.P.C. to register FIR regarding commission of any cognizable offence and its purpose was only to set criminal law in motion

Provisions of S. 154, Cr.P.C. were mandatory in nature

When FIR was registered by local police, under S. 156, Cr.P.C., had statutory rights to investigate case

Interference by court with duties of police was not permissible under law

FIR was not an encyclopedia of all relevant facts

Image presented by FIR would be clarified when all incriminating material had brought on record during investigation

High Court declined to interfere in the matter

Constitutional petition was dismissed in circumstances.

Petitioner was summoned by Trial Court in a private complaint filed by respondent to face trial on the allegations of cheating and forgery

Validity

Petitioner was implicated on the basis of generalized allegation without attribution of any role performed by him in the commission of offence

Complainant in order to secure undue advantage in civil suit, instituted criminal proceedings as a tool

Transaction in question from its very genesis was civil in nature and through sheer misuse and abuse of process of a criminal Court, the complainant had turned the same into criminal litigation

Complainant was not entitled to institute private complainant after extorting an amount of Rs.450,000/- from petitioner as admitted by him before Lower Appellate Court

Proceedings against petitioner, pending before Trial Court were sheer abuse of process of criminal court

High Court set aside the orders passed by two courts below as there was no probability of conviction of petitioner in any offence

Constitutional petition was allowed in circumstances.

Powers which are conferred on the High Court by virtue of S. 561-A, Cr.P.C. are wide in nature and can be exercised at any time if circumstances of a case so demand

Where an accused person seeks quashing of proceedings pending before a criminal court, the powers of High Court under S. 561-A, Cr.P.C. are akin to the provisions of S. 249-A, Cr.P.C.

Such power under S. 561-A, Cr.P.C. cannot be exercised unless jurisdiction of Trial Court is invoked either under S. 249-A, Cr.P.C. or 265-K, Cr.P.C.

Question was whether from the facts and circumstances available on record, prima facie offence of qtal-i-amd had been constituted or not

Complainant had specifically levelled allegation against accused persons of causing abdominal injury to deceased

Cause of death was process of disease which was aggravated by extensive surgery as a result of history of trauma to abdomen, said injury having been caused by accused persons, it was evident from the material available on record that an offence of homicide was committed

Magistrate having observed that evidence on record showed that offence did not constitute murder, assumed the jurisdiction of the case as a Trial Court

Such action of the Magistrate was illegal and not tenable

Impugned order of Sessions Judge maintaining the order of Magistrate was also not sustainable

When the statements of prosecution witnesses had been recorded by the Magistrate after framing of charge against accused persons in respect of offences under Ss. 337-L(2), 427 & 34, P.P.C. entailing lessor punishment, the provisions of S. 347 Cr. P. C. would come into play

Petition under section 561-A Cr. P. C. for quashing the order was allowed accordingly.

Petitioner without seeking remedy before the Banking Court sought quashing of proceedings directly from High Court under constitutional jurisdiction

Validity

Whenever offence was committed by customer of financial institution within the contemplation of Financial Institutions (Recovery of Finances) Ordinance, 2001, it could only be tried by Banking Court constituted thereunder and no other forum

Pendency of civil proceedings relating to same issue was not a bar to commencement or continuation of criminal proceedings

Both proceedings could proceed concurrently as conviction for criminal offence was altogether a different matter from civil liability

Petitioner had approached the High Court directly under Art. 199 of the Constitution for quashing of proceedings of criminal complaint without first exhausting alternate remedies available to him under the law by approaching Trial Court

Such direct approach for quashing, amounted to depriving the other side from presenting its case and or bringing home the guilt of accused

High Court declined to interfere in the matter as petitioner had alternate remedy available to him

Constitutional petition was dismissed in circumstances.

Petitioner was facing trial as accused and his grievance was that Trial Court did not agree with report of Investigating Officer to cancel the case

Validity

Order passed by Trial Court was a short order wherein no reasons as to why cancellation report filed by Investigating Officer of Federal Investigation Agency was not agreed with, was recorded

Order in question was also silent regarding compliance of requirements of mandatory provisions laid down in S. 24(6) of Emigration Ordinance, 1979

High Court set aside the order in question and remanded the matter to Trial Court to pass a speaking order

Constitutional Petition was allowed in circumstances.

Petitioners alleged to have committed offences of corruption and corrupt practice and had entered into Voluntary Return under S. 25(a) of National Accountability Ordinance, 1999

Petitioners failed to deposit amount settled under Voluntary Return, therefore, NAB filed fresh reference against them

Validity

When a person did not pay entire agreed amount as determined by Trial Court, then such default did not fall within the mischief of 'wilful default' as mentioned in S. 5(r) of National Accountability Ordinance, 1999

Remedy for NAB in such default lay in invoking S. 33-E, of National Accountability Ordinance, 1999, as the same had been termed as a special provision to execute recovery of 'amount due' under National Accountability Ordinance, 1999

Petitioners had agreed to pay back the amounts as determined by NAB, by signing Voluntary Return agreements, therefore, subsequent filing of NAB Reference against petitioners was not justified and the same was tainted with malice

High Court directed petitioners to pay Voluntary Return amounts in four equal instalments and quashed proceedings pending before Trial Court

Constitutional Petition was allowed in circumstances.

Rioting, unlawful assembly, mischief causing damage to fifty rupees, intentional insult with intent to provoke breach of peace, criminal intimidation

Inherent powers of High Court

Quashing of proceedings

Accused was not entitled to extraordinary relief as he had neither surrendered before the Investigating Officer nor cooperated in investigation

Accused did not obtain bail before arrest from Sessions Court and approached the High Court without filing application under S.249-A, Cr.P.C. for quashment of FIR before the Trial Court

Criminal cases had to be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused and hearing the arguments of both the parties

No extraordinary circumstances had been shown to entertain the present application

Application was dismissed being meritless and misconceived.

Printing or engraving matter known to be defamatory, intentional insult with intent to provoke breach of the peace, publish or circulate any statement or report containing rumour or an alarming news

Quashing of proceedings

Inherent powers of High Court

Scope

Prosecution case was that allegedly petitioners put a banner at the prominent place on the road, which contained a statement against Judge of the Supreme Court and some other persons

During the course of investigation, petitioners were implicated

On conclusion of the investigation, report under S. 173, Cr.P.C. was filed before the Trial Court and the copies of the relevant documents were provided to the petitioners under S. 265(2)(B), Cr.P.C.

Petitioners had raised objection that there were insufficient material on record and that the Sessions Court could not hold a trial of non-cognizable offence as S. 505(ii), P.P.C. was not attracted

Objection was dismissed by the Trial Court

Validity

Admittedly, petitioners were not named in the FIR and were implicated subsequently and were made accused in report under S. 173, Cr.P.C.

Record showed that offence under S. 505(ii) P.P.C., was non-cognizable and police officer conducted investigation without the permission of a Magistrate

On the basis of said objection, proceeding could not be set aide unless the illegality in the investigation could be shown to have resulted in grave miscarriage of justice

Illegality committed in the course of investigation did not affect the competency and jurisdiction of the court for trial

Circumstances established that order and the proceeding before the Trial Court did not suffer from any legal or jurisdictional infirmity

Petition for quashment was dismissed in circumstances.

Huge quantity of arms and ammunition was alleged to have been recovered from motorcar of accused without any license or permit

Accused filed application for superdari of said motorcar, which was dismissed by court

Validity

Accused had failed to produce any document to show that he was lawful owner of vehicle in question

Arms and ammunition had been recovered from secret cavities of motorcar

Plea advanced by accused that he had no knowledge of recovered arms and ammunition did not appeal to prudent mind

Once FIR was registered, superior courts, having constitutional, supervisory and inherent jurisdiction, had consistently refrained from direct interference with investigation being conducted by local police

Courts could not exercise control over investigation which might be prejudicial to fairness of proceedings, apart from being without jurisdiction

Court, while going through contents of FIR and record of case, could not find legal infirmity or any jurisdictional defect which could justify interference in matter under S. 561-A, Cr.P.C., unless very exceptional circumstances existed, which was not the case of accused

High Court observed that remedy of quashment of proceedings was not available when alternate remedy was available in shape of S. 249-A or S. 265-K, Cr.P.C.

Petition for quashment of proceedings was dismissed accordingly.

High Court is responsible for entire administration of justice and being charged with responsibility of supervising all Courts subordinate to it, High Court is competent to take all appropriate measures for preventing mal-administration of justice and abuse of process of law in appropriate cases

When case is of no evidence or registration of case is proved to be mala fide or case is of purely civil nature or when there is unexceptional delay in disposal of case causing deplorable mental, physical and financial torture to person proceeded against, High Court is competent to take cognizance of the matter and by exercising inherent powers under S. 561-A, Cr.P.C. to correct a wrong by ordering quashing of FIR and proceedings emanating therefrom

Powers vested in High Court under S. 561-A, Cr.P.C. are co-extensive with powers vested in Trial Court under Ss. 249-A & 265-K, Cr.P.C. and in appropriate cases can be invoked directly without resorting to decision by Trial Court under Ss. 249-A & 265-K, Cr.P.C. to avoid abuse of process of Court.